Proceedings of the Standing Committee on
Rules, Procedures and the Rights of Parliament
Issue 1 - Evidence - February 2, 2016
OTTAWA, Tuesday, February 2, 2016
The Standing Senate Committee on Rules, Procedures and the Rights of Parliament met this day at 9:33 a.m. to consider a draft report, pursuant to rule 12-26(2) of the Rules of the Senate, and to consider a draft agenda (future business).
Senator Joan Fraser (Chair) in the chair.
[Translation]
The Chair: Good morning everyone, and welcome. This is our first meeting since the New Year holidays. I hope you all had good holidays, and that you were able to rest and recharge your batteries.
There are two items on our agenda: first, the consideration of a draft report.
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Do all the committee members have this draft report? You do?
This is a report on our extravagant expenses, in the Second Session of the Forty-first Parliament, $1,910.
It is moved by Senator D. Smith that it be adopted? All in favour?
Hon. Senators: Agreed.
The Chair: Opposed? Abstentions?
Carried.
Do I have to ask for a motion to report it? Senator Joyal moves that I report this report to the Senate. Adopted?
Hon. Senators: Agreed.
The Chair: Carried.
Senator Tkachuk: Are we done?
The Chair: Almost. We do have to consider a draft agenda. Life would be much less complicated if we knew if and when we were going to get referrals of cases of privilege. The Speaker has ruled on Senator Hervieux-Payette's question of privilege. It's now a case of privilege, and she has a motion before the Senate to refer it to this committee. Once that's done, we shall write to the Auditor General who, in the last session when Senator White was dealing with him, was completely prepared to be cooperative and come and tell us about what happened to the report within his office. Once we get that, I'll come back and ask you for approval to get back to the Auditor General, but we don't have that yet.
Senator Hervieux-Payette plans to speak to her motion tomorrow afternoon, and unless there are endless adjournments, I would expect to have it referred to us by our meeting of next week.
Senator White: I agree. That's probably what we'll have to do. The question is whether everyone has a copy of the interim report in relation to parliamentary privilege.
The Chair: That's the next item under consideration of a draft agenda. The case of privilege, if we get it, will take precedence over everything else.
There are a couple of other motions.
Senator D. Smith: On that last one, will we need to hire a private, totally independent detective to get to the bottom of it?
The Chair: Are you suggesting Mr. Binnie or somebody like that?
Senator D. Smith: I'm wondering if you're satisfied that we're getting —
The Chair: But that would cost money and our record on not spending money is so wonderful.
Senator D. Smith: Well, whatever your priorities are, that's what they are. I would prefer the truth.
The Chair: So say all of us.
Senator Tkachuk: When we had the issue in Internal Economy with the leaks — there were lots of them. Security was used.
The Chair: I remember they came around and did detailed interviews and asked to see the lock and key under which you kept the documents, but I don't know if anything came of it.
Senator D. Smith: Are we satisfied we're going to find out the truth?
The Chair: As Senator Tkachuk says, it's very rare to find the truth about leaks, but we can do some work, and if the committee so agrees we can report back on our work to the chamber. It is well established that leaks are a serious matter. It's just that they're very difficult to pin them down, but we shouldn't shrug them off and say they don't matter.
Senator D. Smith: I agree. We must remember that maxim ". . . ye shall know the truth and the truth shall set you free."
Senator Tkachuk: If the one who receives the leaks believes they have the God-given right to receive them and never tell anybody, they won't say even if they go to court. Security can't get any information from the receiver of the leaks.
It's too bad we don't have waterboarding; it would be a lot easier.
The Chair: I don't know. My former colleague in the craft . . .
Senator Tkachuk: Nonetheless, it's very difficult to find out. I've been here a long time, and these things have come up I don't know how many times and there's never anyone.
The Chair: You almost never know.
Senator Tkachuk: Everybody knows but nobody really knows.
The Chair: It has always been my view that guilt accrues to the leaker, not the "leakee." I cannot blame any journalist who is given good material.
Senator Tkachuk: I'm not complaining. I'm just saying that's what it is.
The Chair: We're almost certainly going to get this question and would propose to begin that work by hearing from the Auditor General and/or his staff.
Item 2, dear to Senator White's heart, is the interim report — discussion paper — on the question of privilege. You may remember we had asked the library to prepare an executive summary of that report in case all of our memories had faded. That has been done, and if you don't have it already you will have it very soon.
In the absence of a question of privilege and any other demands on our time, and the steering committee did believe that it would be appropriate to bring back that study — discussion paper — I would suggest doing a bit of work on it here in committee again to get us all on the same page about it, and then take it from there. I would like to hear suggestions about who committee members would like to hear from as starting witnesses on this issue.
It has been suggested that the actual members of the subcommittee or the chair of the subcommittee could be a first witness again to bring us all back up to speed on it. I would love to hear other suggestions for the second witness and third witness.
Senator White: I think Senator Furey would be an excellent starting point for us and could probably use up most of the meeting explaining what was dealt with in discussions, as well as Senator Joyal, of course. It would give everyone a bit of foundation for any work. Then we would be able to look at a list of witnesses and maybe something from New Zealand. I know the clerk had discussions with New Zealand, so maybe the clerk could help with some of that dialogue. They've been at this for five or six years, I think. Some of the work they've done will be helpful for this group after we've heard from Senator Furey.
The Chair: I would think that down the road we would probably also benefit hearing from other parliaments, although I know that you're absolutely right when you say that New Zealand has been working diligently on this question.
Eventually, there will be a need for this committee to contemplate changes in the Rules of the Senate with what we can assume to be the growth in the number of independent senators and the presumed, so far as we know, absence of a Government Leader in the Senate. Portions of the rules say that specific things must be done by the Leader of the Government or the Deputy Leader of the Government or the government caucus. Depending on how the new world that faces us actually turns out to be shaped, we'll have work do there. Some of it should probably wait until the Senate Modernization Committee gets going. Some of it may be more urgent and may need to be done more quickly so the Senate can keep functioning.
One of my pet examples is that it's only the Leader of the Government who gets to table user fee proposals, which can't come in the back door and go to the clerk because they have to go to the Senate. Should there be a need for new user fees, we can seek leave of the Senate to proceed, notwithstanding rule XYZ. It would nice if we bent our mind to getting things tidied up.
Senator Cools: I would like to raise what I think is an important issue in respect of government leaders. We used the words "government leader" and "minister" interchangeably until the last few years when, for mysterious reasons unknown to me, the government leader in the last session or so was not a minister. It is the presence of a minister that is needed in the house to make anything government business. So perhaps we should look at and study that issue a bit because there seems to be some confusion about it. It is the fact of the presence of a minister — and I can wax poetic on that for hours and hours — so I don't think we can leave this matter unstudied for too much longer.
The Chair: This is an argument you've made in the chamber, which I find stimulating and in some ways awe- inspiring.
Senator Cools: We've had a minister for so many years.
The Chair: We haven't actually figured out, since we don't have the Senate Modernization Committee established yet, what will be the meshing, non-meshing and overlapping of that committee with this committee. I suspect that some of what you're talking about may come also under the mandate of the Senate Modernization Committee. We have a couple of difficulties in that the rules in the Parliament of Canada Act maybe should refer to a minister but they don't. They refer to a Leader of the Government.
Senator Cools: All of that was disputed a long time ago.
The Chair: I know, but there we are — we've got a law.
Senator Cools: Many people didn't want those kinds of things in the rules because they are ancient practices that predate all rules. You have to know that back in 1991 when the rules, largely as we know them now, came about, there was a lot of discussion about some of these things, and there were many objections, too. What we're dealing with now is trying to change the rules to meet a reality; but it's the reality that should determine.
I find it interesting that they call it "Senate modernization." Some of these practices are as old as Methuselah, so I don't understand why the term "modernization" has been called into play.
Ancient practices, right, Senator Tkachuk — you remember some of them quite well. You're almost as ancient as I am.
Senator Tkachuk: I feel old until I listen to Senator Cools.
Senator Cools: Then you feel youthful and vibrant maybe.
Senator Tkachuk: What bothers me here is that I always thought that we were in charge of our place.
The Chair: We are.
Senator Tkachuk: Right now, it seems that we're not.
I'm trying to keep this as non-partisan as I can, but it seems to me that if the Prime Minister wants different policies than we have now as far as how we run the second chamber, while still respecting our autonomy, then we should go about the business of doing that; in other words, appoint a government leader. Someone should come there — the house leader or the Prime Minister himself, as the former Prime Minister did when he was bringing in legislation on voting. He came before the Senate and said this is what he would like to see, and then we studied it.
I think the present Prime Minister or the house leader should come before this committee and say: "This is what I'm going to do; this is the plan," and then we would look at it. It would come under some order. In other words, the house leader would be in place. We would be doing our business. Legislation will be coming soon. But right now, he's appointing someone that doesn't exist. He's appointing a representative of the government, but we don't have a representative of the government.
I'm confused, frankly, and a little concerned about our independence. I don't know how we resolve this, but I'd sure like to hear the views of your side as well as our side. That's my view of it. It's a mess right now, and a mess that I find unacceptable. As a second independent chamber, what we're going through is BS, frankly, and that's about as articulate as I can get over this matter.
The Chair: Eloquent indeed.
Senator D. Smith: We should be developing, as a result of this conversation, a list of prospective items for the agenda, and this one should be right near the top if not at the top. In other words, clarification of this new pattern is needed, if we can even call it a pattern — the new world around here, which is rather unprecedented. Clarification is needed on some of these fundamental things that have always been assumed and taken for granted.
Senator Tkachuk: It's our rules.
The Chair: It is our rules. It is the fact that the rules were drawn up at a time when independent senators were very scarce on the ground.
I have had no discussions with anybody in the government, but I have noticed that repeatedly in press conferences Mr. LeBlanc has said, "It's for the Senate to decide." However, we have two Senate bodies that are going to be at work here. One is this committee and one is the Modernization Committee and we don't have the Modernization Committee yet.
I'm not disputing your point of view, Senator Tkachuk; I'm not. That's as far as I'm prepared to go at this point.
Senator Tkachuk: I think the whole idea of independent senators and the idea that you don't sit in a national caucus together doesn't make anybody independent. It simply makes them separate from but still makes them what they are. You're Liberal senators; you're just not part of the national caucus. That's not an unusual thing. We've actually had discussions about whether we should we part of the national caucus, but we certainly weren't considering ourselves as not being Conservative. I noticed the house leader the other day on TV saying he hopes to appoint progressives. Well, excuse me: I'm not the dumbest kid on the block, but what's he talking about here?
There will either be senators who represent the government or senators who don't. That's the way it is. Whether they call themselves Conservatives or Liberals doesn't make them independent. It just makes them Liberals and Conservatives who don't belong to a national caucus in one case, and in another case they do. That's all it is.
Senator Batters: Just to pick up on that point from Senator Tkachuk, first of all, we will see what the new reality is. We really don't know. It seems to be changing almost weekly. Simply because the new Liberal government determines to follow a certain course of action, they well know what our rules are and we will see once they impose this new reality whether we find it necessary to change our rules, or simply because they want us to change our rules may not necessarily be a good reason for us to change them.
Minister LeBlanc has also said things in the press several times recently saying that the Senate is going to have to change its rules. Well, I don't really think that's up to him to tell us to do that. So we will see what happens, and then we will determine how to proceed from there.
Senator White: To follow from this, there is even the discussion around how senators are to be brought forward in the future, to be recommended by, I think, academic institutions and not-for-profits, who tell me they're not independent. They're actually being recommended by someone out there already. It would be nice to have a minister here at some point to explain how that's going to work since it will impact on the way we do business in the future. We haven't even heard that, and yet we know it's going to impact on us greatly in a couple of weeks. That would be a good discussion as well.
The Chair: On a point of information, I was reading yesterday or early today the latest statement from the minister. It was very plain that the requirement that a new senator be proposed by an organization applied only to the first batch and then, after that, individuals would be free to apply in the normal way.
Senator White: Senators and different senators, progressives and regressives.
Senator Batters: Where the leader will come from.
Senator White: I'll fit in with the regressives, probably.
Senator Joyal: I would ask that we take the issues in sequence, if possible, that we first address the privilege issue and try to find out if there is a consensus among the members on that one. Then we could move to the others, and I'll have some suggestions to make.
On the issue of privilege, as you know, we have had a report. At the time we tabled the report, if I remember well — and Senator Tkachuk might correct me — we entertained the idea that the report could be the object of a Committee of the Whole because this issue addresses each senator individually and the whole of the institution. As much as I'm not opposed to the idea that we have the chair of the subcommittee, with Senator White, to refresh our memories individually, I think the objective was to share wisdom with all of our colleagues. I don't see why Senator Furey could not give his summary or highlight the major points to the Senate as a whole. There is an element of shared information in that report that is needed.
I repeat: I totally supported the suggestion at that time of Senator Tkachuk, especially since we don't have a very heavy legislative agenda, that there is no doubt we can use an hour of Senate time in the forthcoming days and weeks to share the substance of the report with the whole of our colleagues. I would like our committee reconsider that as a course of action that might be helpful for everyone.
I was trying to refresh my memory when senators were expressing themselves — I want to be respectful of my colleagues — so that we could take it up where we left it when we completed our discussion under the chairmanship of Senator White.
The Chair: It's true when you said an hour; Committee of the Whole doesn't normally last much more than that. Are you contemplating that there would be further debate following that?
Senator Joyal: Exactly. The members of the subcommittee were Senator White, Senator Nolin and me. Senator Furey was the chair, but those of us who were members of the subcommittee can certainly be helpful to our colleagues who might want to ask questions as much as we can suggest information. Then we could entertain a wider debate because then we would start from more or less the same shared information on the basis of the report. From then on we could probably determine what would be the next step.
In my opinion, the approach of a Committee of the Whole on this is a very important next step. As I say, it is an issue that needs to be shared with our other colleagues who have not had the benefit of participating in our study of that report. It is a comprehensive report, as you know. It's not three pages.
The Chair: No, no.
Senator Joyal: It's more complex than that.
The Chair: It's dense in the sense of containing an enormous amount of material.
Senator Joyal: There are a lot of implications.
That is my suggestion in relation to that.
The Chair: That will of course have to be raised with our caucuses and leaderships, the Speaker and everybody.
Senator Joyal: But at least we start somewhere.
The Chair: We'll do that; we'll raise it.
Senator Joyal: That's the first point. I don't know if you want to canvass that again before we go to the next point I want to raise.
The Chair: Senator Martin wishes to speak on that point, and then I'll come back to you.
Senator Martin: Senator Joyal, I absolutely support that suggestion that we look at it as a Committee of the Whole, which I know Senator Tkachuk had proposed. In fact, I think it relates to what we've heard so far regarding this institution, this upper chamber. It would give us a clear reminder of the foundation upon which this institution is based. It would be good for us as a whole to remember that. In fact, it may even get us ready for what new situations may be presented to us.
As Senator Batters said, how we change the Rules of the Senate, what we need to change to potentially accommodate and adjust to the changes that are being imposed is up to the Senate to decide. Our rules are clear. At times when the outside is looking at what's happening in the chamber, when they don't understand the rules, it may be confusing to the other, but we as an institution, we understand, and I know that I've come to really appreciate the work that we do.
Yes, if changes are to happen, we have these fulsome discussions. We can debate at length in this Rules Committee, but we then take it to the chamber. Certain reports can remain there if the chamber chooses it's not the time for such change.
I think taking it to the Committee of the Whole to give us a really clear reminder of the foundation of this institution will be a good exercise for us as we prepare for new colleagues who will be joining this institution.
The Chair: Senator Cools, on this point.
Senator Cools: The Committee of the Whole is a vital and important thing and important thing and I support that all the way. But I think that we should be crystal clear that if we go down that road, it doesn't mean that there would be one meeting, one Committee of the Whole held one day, and that's the end of that.
I would be happy to support it if we could have a series of Committees of the Whole, where we adjourn and return. We did that sort of thing during the big discussions on Meech Lake. I think Senator Tkachuk would remember this.
Do you remember? It was ongoing.
Senator Tkachuk: Yes. I was after Meech Lake, but I've heard the stories.
Senator Cools: In any event, I think it's a large issue. I think senators need time, to be quite frank, to study these issues. This is probably the largest matter that one could study, and senators will need time to form opinions and thoughts on the matter.
As long as we are clear that this isn't going to be one meeting, one day, for one hour, and that's the end of it, and somebody forces a vote and moves a question. This should be something that is deep and takes the amount of time that it deserves and needs.
I wouldn't want to have to raise a Question of Privilege on this on the floor if it doesn't happen. Then we would find ourselves going in circles. Then it will come back here and we'll start over again.
The Chair: I would like to explain, for colleagues, why I was suggesting that we hear a few witnesses before carrying it to the chamber. It's just to bring us all back up to speed because our colleagues are going to rely on us. However, I couldn't agree more with everybody here that ultimately, and sooner rather than later, it is the Senate, not this committee, that has to reach positions.
Senator Joyal: Have we completed that issue?
The Chair: We're done on the Committee of the Whole issue.
Senator Joyal: I think we should take it in sequence so that we achieve consensus.
The Chair: I see no further interventions on that.
I think we understand your point on that, Senator Cools.
Senator Cools: I think we should be crystal clear, as well, that it is a subject matter that few people work on. I cannot count ten people in the country, if I can even count five, who are doing any work on it, and it's probably the most important thing that will ever be put before us. I think we should give it the attention that it needs and deserves, and I have copious material for senators who don't have any.
The Chair: Senator Joyal, point number two.
Senator Joyal: Point number two is in relation to the issue raised by Senator Wallace, some other independent senators and other senators.
At this stage I think it would be premature to make a decision on the issue of the status of independent senators before the Speaker has ruled. I think that, in all deference to the Speaker. I happen to have one opinion, and I proposed it to the Senate when the issue was raised: This committee should wait until the Speaker rules on this issue because that might determine the way this committee could approach the issue.
If the Speaker rules that there is a question of privilege, it might be up to us to then take the next step. If the Speaker rules that there is no question of privilege, it could still be up to us to take on the issue.
I would like to answer Senator Batters' comments, which I think are appropriate. Should we wait until there are new senators coming and new senators with which status? At this stage, the rules are, in my opinion, pretty clear. They are senators who belong to a party that is identified in the electoral act as being registered and running candidates. That is how we are recognizing the Liberals in the Senate, under that label.
We will see later this year where the new senators that might be coming — more than 22 — decide to go. If they remain "independent," there is no doubt in my mind that a number of them, plus those who are already there, will mean that almost one third of the Senate could be labelled "independent." In that context, there is no doubt that this issue would need to be addressed in one way or the other.
I come back to your point. Should we wait until they come before reviewing this situation, or should we not? That is the question, in my opinion.
There is no doubt that if we review their status, that might involve changes to the rules, and changes to the rules is us — this committee. The question of the substance of the changes, the policy of it, might be discussed by the Modernization Committee because, as you might understand — and I have raised this on the floor in the Senate — if they are so important as a group, more than 30 with those who are there, how could we manage the Senate Chamber? Where do they sit? Because, as I said earlier on, where they sit is symbolic of the role they play in the chamber. Then, how will they organize themselves, because there are a lot of implications?
Senator Tkachuk: They're independents. They don't organize.
Senator Joyal: I just want to say let's look into how the House of Lords deals with the crossbenchers. The crossbenchers are not committed in the House of Lords. There is the government, as well as the opposition, the Liberal Democrats and other recognized parties, and the crossbenchers. So we might want, as a preliminary reflection, to look into how they manage that.
The Chair: Senator Joyal, the steering committee thought somebody might be interested in this issue, and we've asked the library to do a research paper for us on how the crossbenchers are handled, which is, of course, a subject requiring substantial research. They weren't able to produce it just overnight like that. When we get that, I think you're quite right that there's ground there to move forward, even if we are still in preliminary stages.
Senator Joyal: Yes, we are at the preliminary stages of trying to understand the system. I would like to see how the crossbenchers organize themselves. As my friend Senator Tkachuk mentioned, they are supposed to be independent, but there is a convener of the crossbenchers. In other words, they have — I will not use the term "leader" — somebody who represents them and that they choose amongst themselves.
Senator Tkachuk: But they have a government and an opposition. Here, we don't have a government.
Senator Joyal: Yes, that's it.
Senator Tkachuk: There's a big difference. The crossbenchers will be the government.
Senator Joyal: I think you make my point. That's why I want us to understand how they manage themselves in a specific context and how we have to adjust. My first approach would be to look into that.
I'm happy that the library is preparing that because there is "independent" and "independent." There are a lot of implications in there because, as you know, when we organize on a party basis, if a senator from a party is not coming to a committee, he or she will be replaced by the whip of that party so that there is quorum on the committee. But, in the theory of being independent, I am independent. Tomorrow morning, I don't come to the committee, and I say, "To hell with you." Nobody has the responsibility to replace me.
Do we have to determine that an independent who doesn't come will have to find a replacement for the committee to allow the committee to continue to work? This is a reality. This is the hard, kitchen reality of how we want the system function, and we have to maintain the functioning of the system.
So there are a lot of implications in there that we might have to review at a point of time.
I come back to the first question of Senator Batters, which is totally appropriate. Should we wait until they are appointed, see how they determine their status according to the present rules, and then say, "Well, okay, we'll have to review the rules," or should we start reflecting upon how a group of independents coming into the Senate could have implications on which rules? We can do that exercise. You and I can start reading the rules and points in the rules, which aspects of the rules could be touched or affected by that. Anybody can have that exercise in the warmth of his or her library, drawing-room, kitchen or office, but we can already do that kind of exercise. It might be helpful if the library could do that for us. Which rules would be affected in the context that there is an important group of independents. That's one other way of reflecting.
There is another issue which is very important, in my opinion, and it is a constitutional issue. It's the determination of what is residence in relation to the Constitution.
I can express to you my concern candidly. When I read the press release that came from the minister of democratic reform and the Leader of the Government on the other side, they interpreted the concept of residence within the Constitution. If you read the press release, there is an interpretation there, and they say, "According to us, here is what we think 'residence' means."
As a lawyer and having an interest in the Constitution, I was upset because they were taking a stand on something that belongs to us. It is for us to determine what we understand as "residence." Traditionally it has been interpreted by PCO. Nobody has ever done anything in the Senate in relation to that.
But I think with what we have known about the question in relation to residence — and I don't open the can of worms that exists under this concept, the way it has been interpreted in the past — this institution has come to the point where it has to be clearly defined what we understand by "residence" and that it is up to this institution to determine how it's going to be implementing it. If there is something we have learned from the past years, I say it in the plainest terms with no allusion to anything.
When I read that they interpreted the Constitution in relation to us, that it is the privilege of the Senate to determine, I was upset, and I think it is an issue that this committee should be seized with.
The Chair: Senator Cools, let's wait until Senator Joyal is finished.
Senator Cools: I'm just asking for the name of the document, to put it on the record.
Senator Joyal: It's the press release that came from the minister of democratic reform and the Leader of the Government that was issued — I mean, it was printed officially. I should have taken the paper with me this morning.
The Chair: We'll send out the link.
Senator Joyal: I think that you have the link.
So there is this issue, and there is another issue which is even more political than the other one, which is the work of the Selection Committee now.
The Chair: Just before we go to the Selection Committee, you raised a major issue on residence, and I wonder if it would be worth seeing if colleagues have any comments they want to make about that.
Senator Tkachuk, the Internal Economy Committee did various bits and pieces on residence.
Senator Tkachuk: We talked about it a lot, only because of the issue that arose, but we never saw it as our duty to interpret. We thought it belonged to this committee to interpret. Therefore, we never went down that road. We asked for advice from time to time, and we asked for the Clerk's advice from time to time, but we never studied it as a committee. We thought it belonged here. That's as far as we went.
Senator White: I think the bigger issue is who sets our rules, making our rules, and for me it's not the minister or the other place that determines our rules. I think it's really about us taking that back and saying, "Look, we'll determine this."
We've already had these discussions. We didn't have ministers in our Internal Economy meetings telling us what we should or shouldn't think about any of the rules, which includes residency. That's the bigger picture for me, that we actually exert this authority since it is our responsibility.
Senator Tkachuk: Madam Chair, just to clarify: I didn't make the following point, and I should have.
There were two issues. There was the constitutional issue of residency, which is the issue that we tried to stay away from as much as possible and get out of our hair and that we thought belonged here. Then there was the issue of residency for the purpose of getting expenses, and there we felt it was our prerogative, and we dealt with it in that manner.
Senator Joyal: I make the clear distinction between residence in relation to admissible travelling or moving expenses and, of course, the constitutional issue. I am on the constitutional issue.
Senator Tkachuk: That's what I thought.
Senator Joyal: The Constitution says it belongs to us. It's our privilege as an institution to determine that.
The Chair: It's my recollection that the famous press release, if you will, was setting up a third category for residence because I don't think it actually said "as set out in the BNA Act." It just said, "We won't recommend a senator who doesn't meet these criteria." So you have for the purposes of the Constitution, for the purposes of claiming expenses, and now you have for the purposes of getting a nod from the Prime Minister.
You're right; I think there is work to be done.
Senator Cools: I thank Senator Joyal and Senator Tkachuk and yourself, Senator Fraser, for raising these issues.
We have to reclaim the constitutional issues of residency as our own. I think we should come to terms with the fact that the creation of policy based on primary and secondary residence was a foolish policy, a stupid one, and that we should distance ourselves from it as much as possible.
I had raised strong opposition to that policy when it was created some years back. Remember, every senator and MP used to get a finite, limited amount of money monthly; no expenses, no bureaucracy. Then they changed it to this in the name of transparency, by the way. That was the thing of the day: in the name of transparency.
At the time I argued it was only a question of time before someone would count the number of nights slept here and the nights slept there, and concluding — whoever they were or that person was — that this was not really their primary residence; it was really their secondary residence. To me, all of that was entirely predictable and very tragic.
It broke my heart, colleagues. I was beyond distressed that the files of those nine senators were handed over to the police. I don't understand why the senators and the Senate accepted that. We should never have accepted that, but that's a different issue.
What I can say to you, with the full force of everything I've ever read, is that for 150 years, MPs and senators have come from all over the country, and it was always understood that their time spent in Ottawa on public business could never be counted as against their residency of their province. That was the underlying principle.
R.B. Bennett used to come to town. Remember, accommodation in those days was not as widespread and available as now. When a fellow like R.B. Bennett would be in town for three months at a time and then go back, no one would ever have dreamed of thinking that he was in residence, that he had taken a residence in Ottawa.
So something changed in the game. I think it's a curse that the Auditor General or it's undesirable that the Auditor General took it upon himself in his report to make a determination that these senators' primary residence was not what they said.
Senator Tkachuk: It was a false determination.
Senator Cools: And God knows what his premises were and how he gave himself that power, but I could wax poetic on that issue for a long time.
I think we should take hold of this issue. I think we should remove the term "secondary residence" from our rules and policies, and call it what it is, "living expenses while in Ottawa," which is what it used to be. I think we should excise a lot of this from our language, if we can, because all it has done is armed and equipped detractors.
We should bring up this issue, because I still want to know what powers —
The Chair: We have at least one more topic to discuss.
Senator Cools: — because I still want to know what powers, because the Auditor General had no powers to do any of this. That is a story for another day.
Senator Tkachuk: The Auditor General spent a lot of time to determine residency by using the question of how many times they travelled back and forth —
Senator Cools: That's correct.
Senator Tkachuk: — which was a determination that Internal had used only to fortify something. It was never used as a basis of determining residency. He determined it as a basis for determining residency, and I think he got it totally wrong.
To clarify the issue of the $10,000 and the way we file for expenses now, when I got here in 1993, we got tax-free allowances. At that time, I think MPs got $24,000 and we got $10,000 or $11,000, somewhere around there.
What happened was that crafty Prime Minister Chrétien wanted to increase the salaries of MPs after 1997, and they set up a commission. I can't remember what it was called. The Prime Minister from time to time would talk about, "Oh, you know" — and the media by now had said that that was part of our salary, so everybody thought that I made what at that time was $69,000 plus a $10,000 tax-free allowance. He said, "You know, we should tax that."
So he kept talking about that, and in the end what happened is they added that to the salaries, which was the largest increase in parliamentary salaries probably in history. MPs got 24 times 2, we got 10 or 11 at that time times 2, and then there was negotiation to make sure we never fell below the $25,000 limit. So that money would be taxed. And then, of course, there were the expenses being paid.
The problem was that people had residences, houses, under that $10,000 and $24,000, which they were using to pay their expenses while they were in Ottawa. They had condos or whatever. So for apartments and for hotels, it was easy to go to a billing system which hadn't been used. I don't know if it had been used previous to the $10,000 tax-free allowance, but that became an issue for houses.
Then there was a whole bunch of discussion about how much it should be, how we deal with the house and how we deal with a secondary house. So they ended up with like $20 a day, or whatever, times 30, $600 a month, and then they were billing per diems. That's what was going on.
So it's a 15-year-old problem, but it never got determined. We basically borrowed all of the information from the house and laid it onto the Senate, which made it even more difficult. So that's how we got into these problems.
It would be nice if we did talk about this and kind of figure it out here and keep it separate from the expense issue, which is still a problem, I think.
The Chair: I think steering has understood that members would like us to look at residence.
Senator Tkachuk: It's complicated.
The Chair: Any other comments on residence before we go to Senator Joyal's third point?
Senator Batters: I have one brief comment on residency.
Obviously we need to be mindful of the fact that right now we have a criminal court case going on where the issue of residency is highly charged. So whatever we say on that as part of this committee will no doubt be reflected in that. I just want to bring that to people's attention. Not to say that that has to preclude things, but we need to be mindful of that.
The Chair: Can you refresh my memory? I believe the testimony is concluded and it's now in the judge's hands.
Senator Batters: Yes, waiting for closing arguments, actually. They haven't had closing arguments yet.
Senator Tkachuk: There is another case coming up.
The Chair: Another case is coming up, right.
We shall proceed with all appropriate caution, but the subject does concern many people, and you can tell that from what has been said here this morning.
Next is Senator Joyal.
Senator Joyal: The other issue that I want to share with colleagues is the selection process of senators.
The Chair: Of senators or of committees?
Senator Joyal: No, not the Senate Committee of Selection, the selection process of new senators.
I totally agree with Senator Tkachuk. The previous government made it clear how it views the issue and proposed a bill. We will remember the discussion around this table. I think it was a fair approach because it was clear; we knew what we were discussing.
What concerns me in the present context is that the Senate is an institution that we happen to know intimately, from the interior. We know it because we are in it on a daily basis and we take part in all of its proceedings and its committee work and its rules, its obligations and ethics, and everything that surrounds our work here.
What I see happening is that there will be a group of highly respected Canadians, most of them, to my personal cognizance, who don't know the institution. In other words, they have rarely appeared as witnesses. Most of them have not appeared, to my recollection. Their knowledge of the institution is, in my opinion, probably very general, and they will have the responsibility to appraise candidates, with the objective of recommending to the Prime Minister candidates for recommendation to the Governor General.
I think it's up to us to express what we feel is needed to be efficient, responsible senators. I claim that after 17 years in this institution, I might have a personal idea of what is requested from a senator to make a contribution, the expected contribution in this institution.
I am concerned that a group of people are now the ones responsible for determining on which criteria — I don't really know — to recommend the best individuals. I'm not disputing they have that responsibility. What concerns me is what kind of points they will want to check in the candidates, in the thousands of candidates they will receive. We'll know it the moment they open the gates. It will be up to any Canadian to propose whoever he or she wants.
So I think that as somebody who will eventually have new colleagues, it would be helpful for those new colleagues to be aware about what this institution is before anyone moves forward to ask, "What will I be doing there? What is expected of me? What kind of contribution is expected? What are the points of balance that we want to propose?" In other words, each and every one of us has an idea about that on the basis of our own experience.
What I don't like is sitting on the sidewalk and seeing the parade going by and we'll take whoever is appointed and say, "Thank you." This is happening that way.
Well, this is a moment of change. So if there is a moment of change, I think in all intelligence, we should have that kind of discussion and genuinely propose what we think is the —
[Translation]
— I am going to use the French expression — the requirements, while ensuring that they be in the minds —
[English]
— in the minds of the members of the Senate Committee of Selection, because we know what the job is.
Let's put it in reverse. Let me make a parallel with the appointment of judges. When they want to select a candidate for a judgeship appointment, the membership on the committee are judges, lawyers, stakeholders, police representatives and the general public to ensure that those who are selecting the candidate understand what is expected from that person.
In our case, it doesn't seem to be important for the person who selects the candidate to know anything about what is going on in the Senate, what our mandate is and what we have to do. "Oh, it's only three days a week. Don't worry; you can still be free on Monday and Friday." We know we have to read and keep in touch with whatnot. How can those members of the committee understand that if it's not given to them in an organized way? That's my preoccupation.
I'm being very candid with you. I don't intend to make a big fuss about it, but since the former government was clear enough on what it expected, I think it's up to us to be clear on what we would like to see on the basis of our own genuine experience of future appointments in the Senate.
Senator Frum: I would like to ask my colleague, and you know how much I respect you: You say that in this discussion, you're not disputing the responsibility of this subcommittee. I don't think we can have the conversation without also disputing the responsibility that they've been given and whether it is appropriate for the exact reasons that you have just illuminated.
There's an accountability issue. If they are not adequately or properly able to make a fair determination about the sort of people who should be selected, but they do so anyway, the question becomes this: How do we hold that committee accountable, and why are we allowing for the possibility that the Prime Minister is not responsible for these appointments?
I would simply say that if we're going to have this conversation, and I think we should, it must also include the question of whether this process is legitimate in the first place.
Senator Joyal: Do I have to respond?
The Chair: Maybe you could respond after a few other senators.
Senator White: I'm in the same space. We don't know what we don't know, yet we're supposed to judge what we can't judge. That's where we're at.
It would be excellent for us to have the minister here to explain rather than reading about it in a press release, hearing about it on the news or having emails sent to me from people who want me to recommend them for appointment. I don't even understand how this is going to happen.
I would love to see the minister here to discuss this with us, and then we can explain to the Senate whether we support it, don't support it, or have no opinion. At least we could have this discussion instead of reading about it in the paper.
This is not about politics at all, by the way.
Senator D. Smith: Yesterday, I had a fine lunch at one of the grand old clubs in Toronto and was cross-examined on what it was like being in the Senate. After about five minutes, I figured out what that luncheon was all about. It was very interesting. It was a person with exceedingly strong skill sets. I won't say anything more about that person.
Maybe we just have a session or two in which we conclude on some observations on desirable criteria or skill sets for future senators. It's nothing more than observations. Sometimes you have people come in here with unusual backgrounds, but I think might have thoughts on that. It won't mean anything, but it may trigger more thoughts about these things and what sort of balance you have if you have various categories. I'm not going to be around for long, so I wouldn't be saying too much about the final report.
More discussion of a situation like this is probably desirable. When we had all that debate about where a couple of senators were from — residence — it's pretty clear: ". . . shall be a resident of . . . ." I don't think that criterion was met in several situations, whereas if that's in there, it should be met.
These are just observations on possible future observations.
Senator McInnis: It's interesting, but I'm having trouble distinguishing as to how this process that they now have is different from what we've had in the past. I may have had organizations submit my name — individuals and so on — and then I'm recommended by the Prime Minister to the Governor General and appointed. I just don't see the difference.
But I think the senator is saying — and he'll correct me — that we have some new system. You've mentioned directly the appointment of judges, which is an excellent system where you have interested parties, whether it's a Deputy Minister of Justice, a judge of the Supreme Court, police and so on. Is that what you're suggesting, that we have a group that has knowledge of how the Senate operates and will choose, select or recommend individuals who are well aware of the Senate and how it operates? That would be an interesting concept and would probably be a much more effective one of getting really good people into the Senate.
I would like to hear your comments on that.
Senator D. Smith: There is a difference between observations and rules. Observations on some of these things might be helpful in terms of more discussion on it. I'm not talking about having something similar to the way judges are chosen. Given my wife's position, I'm quite well aware of that whole system, inside out.
The more people know about these things and what some of us might think are desirable assets — and in the form of sort of observations rather than rules. There are rules that do require further clarification, such as residence, but I just think observations on this would stimulate more discussion and focus on it. In the long run, it will hopefully result in more talented people coming to this chamber.
Senator Batters: I wanted to point out further to this discussion that yesterday there was a newspaper interview in the Hill Times where the chair of the subcommittee, Ms. Labelle, briefly mentioned the different topics they discussed in their first meeting:
Ms. Labelle said that in the first board meeting on January 21, all members discussed the role of the Senate, the eligibility criteria, the recommendation process, and how to reach out to Canadians for the consultation process.
I agree with what I think my esteemed colleague Senator Joyal is suggesting here: Perhaps we should invite members of the subcommittee to come to the Rules Committee and find out exactly how this process is going, and sooner rather than later.
Senator Cools: I would like to remind committee members of how senators used to be chosen, and I was chosen in that way as well. But it used to be a heavily caucus-oriented process. I do not know if we still have political ministers for every region, but I can tell you that wherever a vacancy existed, you would find all the members from that area trying to button-hole the political minister to support their guy.
It was a process that used to involve the whole country by region as the appointments became available. For example, I was the personal choice of Mr. Trudeau, but I also had a personal meeting with the minister responsible for Toronto, and that process worked because the members could approach their regional ministers. The minister had to deal with them because they were members in his region, and it was a well-thought and talked-about issue.
I do not believe this happens any more. I don't believe members have input in many of these appointments.
The same thing used to go on with judges where the minister responsible had the last say with the Prime Minister. Then the Prime Minister had to choose who to accept and who not to accept. Again, I can tell you that when an appointment was available in a particular region, all the MPs, and to some extent senators in those areas, were heard by the political minister who, in turn, took forward the information to the Prime Minister. So it was a more democratic process. Mr. Harper changed a lot of that himself, but until quite recently, a lot of head-knocking and button-holing used to go on among the members and the political minister for the region.
I won't tell tales out of school, but I remember a particular appointment in Montreal. There were three of us in that caucus heavily supporting one person, and we button-holed the minister one day and he said, "Okay, okay, I'll do it today."
Historically we had ways and means to deal with these issues in a very fair and balanced way, because the people involved were going to serve with the individual. It meant a lot. I put that out for those who don't know about that process or those who have forgotten.
Senator Joyal: On all the various aspects that have been raised, my suggestion to my esteemed colleague Senator Frum would be to find the answer to this question: On which constitutional basis does this committee operate? This is the preliminary information we should get. You will remember during the election campaign, Mr. Mulcair criticized the Prime Minister's suggestion that there was no constitutional basis for it and that the Supreme Court had already determined that it's up to the Prime Minister, period.
In order to canvass that point, there is no better witness than the minister herself. My suggestion to this committee is that we invite the minister of democratic reform, from whom we heard that the Prime Minister wanted to propose the former bill to the Senate. I think that the government had taken a fair approach, and on that basis we can, if we have the capacity, invite the representative or the chair of that consultative committee to come. If they feel bound directly to the Prime Minister and can't be pressed to report, we will cross that bridge when we come to it.
The first initiative is to invite the minister so that we hear, from the person responsible, the intention, the legal basis, and the prospective expectation, and how we think we could express our views in relation to that. We are affected by this decision and it's fair that we know what the government has in mind because we are the stakeholders. We might have to adjust our way of doing things following the appointments of 30 or so independents.
It's fair for us to understand the process rather than read it in the paper and try to decipher the untold reality behind the printed stuff.
That's why I suggest we invite the minister; there are documents that have been released, and we have a basis on which to prepare questions. It's not just supposition: The documents are there and they released even more yesterday.
Senator Tkachuk: I agree with Senator Cools that there was a process. When my appointment was made, I had a discussion with the political minister from my province. I'm convinced that if the political minister or the leader of our party, who was not the premier at the time, had nixed the appointment, it wouldn't have happened. I think most prime ministers consulted a wide variety of people before they made the appointment. It may have been, from time to time, a close friend who they knew extremely well, or maybe a minister they worked with. Right now we do not know if that's the process. The Prime Minister chose the method of advice at that time and now this Prime Minister has chosen a different method of advice. I do not think the citizen knows what is expected.
I think they're going to get a lot of resumés. I think they're going to get thousands. Once they get that and there is one appointment, how long is that going to take? Is everyone going to get an interview? It looks like such an uncomplicated process, but I'll tell you what: This is a complicated process.
And when they get it, what if the Leader of the Liberal Party in Saskatchewan says, "That person is a jerk; I don't want that person." This is all human beings doing human things, and this is not that easy. I think it's going to be really complicated. Good luck to him. I don't wish him any luck, but good luck to him. That's all I can say.
The Chair: It's not a subcommittee. It's a committee on appointments or something.
Senator Joyal: It is an advisory committee on the selection of candidates for Senate appointments.
The Chair: A committee is a delegated authority from a wider body. They're using their own language.
Any further comments?
Senator Joyal: I have had enough input.
Senator Frum: To me, the most important question here is about accountability. Whatever systems were used in the past, it was the prerogative of the given prime minister. But in the end the question on the table is: Is the Prime Minister ultimately accountable for his appointments? What is new and different is that this Prime Minister wants to take the position that he is not responsible for the individuals that he plans to appoint. Who is responsible for them? Is it this committee? And who is it responsible to? That is a fundamentally important matter of democratic accountability, and we should keep that at the forefront. That is "the" question, as far as I'm concerned.
Senator Wells: Thank you, chair.
Senator Cools: I'd like to make a suggestion.
The Chair: Could you let Senator Wells, who hasn't said a word here today, have the floor?
Senator Wells: My concern is not so much about the process that the Prime Minister has set up, because each prime minister that has preceded him has developed their own system as to how they gather names and, of course, it's their prerogative. In the press release that went out in the last few days, they made specific mention that it's still the Governor General who appoints on the advice of the Prime Minister. Whatever process goes before that is the process.
My concern is the additional qualification that came out just recently: Essentially, for the first five anyway, it's special interest groups now being embedded in the Senate. We have always had a Senate that is of independent-minded people who organize themselves by caucus, for the most part. Now, there is a requirement set up in the Prime Minister's process that will have appointed senators being recommended by special interest groups, be they First Nations or whatever. This gives me great concern because the whole idea of the Senate is to be able to exercise that independent thought. You may be a new senator recommended by a special interest group or Aboriginal group or language group. Now that this is part of the current Prime Minister's official process, I have a great deal of concern with embedded special interest groups in the Senate.
Senator D. Smith: We've had a pretty wide-ranging and free discussion here. It would be helpful, chair, and you're good at doing this, if you could articulate what you think the appropriate scope would be for our discussion next week, to the extent that some of us might want to give structure and pinpoint a few arguments. We may want to work on where we go from here. This has been helpful, but we need a little bit of discipline to structure our future meetings in more clear-cut sections or groups. Items on which we seem to have consensus should be reviewed and discussed and, hopefully, recommendations made.
The Chair: This wide-ranging discussion was designed to elicit a range of suggestions from committee members, and it has certainly done so. We've given the steering committee more than enough to chew on.
Senator Cools: As just a suggestion so as not to cause the minister, when you invite her, too much anxiety or possible distress, perhaps you could offer the comfort that we prefer to meet with her in camera.
Senator Batters: It's supposed to be open.
Senator Cools: Well, then, we may get nowhere. It's a committee. You still need a structure.
The Chair: Colleagues, as I say, you have given the steering committee more than enough to chew on.
Not necessarily matters of urgency, but the topics we have discussed today are the report on privilege, the matter of residency, the matter in various permutations and combinations of the proposed new nomination process, and the matter of independent senators and how we deal with them as they grow in number, particularly in reference to the cross-benchers in the House of Lords.
I think I discern here a sense among committee members that they would like to move sooner rather than later on whatever we can get in the way of an appearance before us by the minister. The steering committee, of course, will meet to discuss this. It struck me as the item most committee members thought was, in terms of timing, perhaps one of the earliest we should tackle. There's also the report on privilege.
The matter of residency is profoundly important but maybe not quite so urgent.
The matter of independence is a little more urgent in terms of time than the matter of residency but not necessarily requiring an answer from us tomorrow morning because the independents will come in batches. The institution will not be totally transformed by Easter, so we'll have a little bit of time to look at that.
If you will leave this in the hands of your steering committee, colleagues, we shall do the very best we can do. These are all profoundly important topics that have been raised here today, and this committee has a history of tackling profoundly important topics.
Next week is a break week. This committee will meet again in this room on Tuesday, February 16, at 9:30 a.m.
(The committee adjourned.)